Indigenous and Northern Affairs Committee on March 22nd, 2018

[William Amos, Liberal, Pontiac, QC]

To explore the theme further, what specific types of cases do you think would be helpful to bring? Where is that judicial safety net most necessary, in your estimation, given the current constitutional framework and legislative framework that is.... You know, it is what it is.

[Natan Obed]

I think it would overlap with a number of the issues we have been advocating for in relation to social inequity in this country, especially in relation to housing, education, health care delivery, or language. There are a number of different areas where we have exhausted almost all other mechanisms to bring resolution to what are our rights are into the implementation of those rights.

While this government has worked with us in partnership on priorities that are specific to our shared priorities, there are still many things that will probably take resolution in courts because of the pace of the work that we're doing together. I give an example of human rights violations. We have worked very closely with this government on a number of outstanding human rights violations for Inuit over time that are currently in litigation, currently in the courts, or currently being discussed with the Government of Canada. Now we are over two years into this new mandate and there's still no end in sight for a number of them.

We would hope that we could resolve them out of court, but this may be a mechanism to resolve some of the outstanding human rights violations that Inuit are still trying to resolve and redress with the Canadian government.

[William Amos, Liberal, Pontiac, QC]

As you're fully aware, as I'm sure most of our colleagues are well aware, there was significant implementation-related litigation that was resolved near the end of the previous administration for a significant sum of money. Could that have been avoided, in your estimation, with the legislative tools that this bill might offer, or would it still require enhanced remedial measures only?

[William David]

I think it would require more remedial measures than are currently found in the bill. I only say that because there really wasn't very much of an implementation policy at the time that particular case was brought forward. One was developed as a result of it, but in order to avoid situations like that from essentially blowing up in civil litigation, it's extremely helpful to provide early redress mechanisms that are easily achieved and lead to resolution, rather than actually blowing them out through civil litigation.

[William Amos, Liberal, Pontiac, QC]

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

We'll move the questioning over to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you. It's good to see you and your team again.

I guess it was a little over a year ago when the minister went to the UN and unreservedly endorsed...and made a commitment. Of course, we do have legislation before us today that is to put some structure around that commitment. But I found it quite strange that we had Bill C-68 and Bill C-69, which were introduced in the House, and certainly there was language around indigenous process, but it was lacking really what I would say they committed to with the UN declaration.

Would you agree in terms of the free, prior, and informed consent? That language was not used in Bill C-68 or Bill C-69, so did they live up to the standards that they had stated they would live up to at the UN over a year ago?

[Natan Obed]

We've been working as closely as we can with the Government of Canada to understand the ramifications or the next steps after the very positive and welcome remarks in the United Nations around the adoption, without reservation, of the UN Declaration on the Rights of Indigenous Peoples. That being said, there has not been a formal structural working group that has been created to create an implementation plan within this country. We as representatives of Canadian Inuit don't know of mechanisms or structures that are in place to allow for Inuit self-determination within the implementation of the UN declaration in this country. This, then, would extend to all laws and policies that the government has put forward since its endorsement, and today.

We hope and look forward to an Inuit-crown relationship in relation to the implementation of the declaration so that we do have a shared understanding of the necessary mechanisms that this government must put in place.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I know my colleague here was visiting a number of communities in the north last week and had a considerable discussion around, for example, the marijuana legislation. Certainly, again, the government stood up at the UN and made commitments; and they made commitments of Canada and have introduced legislation. I think it's clear that something like Bill C-45, the marijuana legislation, will impact communities across this country, including yours. Not only did I not hear any discussion around the legislation, which, I think, article 19 would suggest should have happened, the general application, but I also didn't hear anything around even excise cost-sharing. It was all conversations with the provinces.

We know that in Bill C-68 and Bill C-69 it certainly appears they haven't lived up to their commitment. Would you suggest that Bill C-45 is another example where a commitment that was made on the international stage has not been lived up to in Canada?

[Natan Obed]

The reason we are here today and talking about Bill C-262, the importance of linking international law and its effect, and the obligation of the government of Canada to implement, I believe, goes beyond one government. It is a behaviour that needs to be unlearned, in that there is a call and response—a cause and effect, if you will—for the obligations that Canada has under international law and the way in which it must act within this country.

As you're categorizing it as a broader issue, I would say we are working with this government to ensure that we give them the specific steps they need to take to satisfy the partnership or the respect for indigenous people by allowing for self-determination within the decisions that are made. Whether it's legislation regarding marijuana or whether it's the implementation of the United Nations declaration, there is a road map. Our position paper, especially for Bill C-262, gives very clear direction, and it would be great to follow that road together.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

We had two witnesses prior, and they were looking at this legislation very optimistically in terms of reducing court cases.

We have significant jurisprudence now, and any mining company knows that they have to be very early in terms of working with communities that are impacted. I don't think there's a mining company in Canada that doesn't know that. If they don't, they learn it pretty quickly.

It's clear that we have some concerns on our side, and some of our concerns relate to the issue of the commitment that the government's making. For example, I'll use Kinder Morgan, because it's very prevalent right now. Who do you get consent from? You have the 51 communities who have signed agreements. Clearly, as the earlier witnesses said, no means no. When you have a community or two whose rights need to be respected with their no.... I've asked this question a lot of times, and I still haven't had anyone that's really made me comfortable with what the answer is.

Should there be a reference question to the Supreme Court beforehand, so that we really understand some of these concepts?

[Natan Obed]

We Inuit are fortunate in some ways that our agreements with the crown were forged in the modern treaty era, post-1971. For the 36% of Canada that is co-managed between Inuit, the crown, and four provinces and territories, there is certainty around process for natural resource extraction. There is still the question of offshore and adjacency to Inuit Nunangat.

Luckily, we don't live in little postage stamps of land and have very little rights or co-management over our large settlement regions. We are very sympathetic to other indigenous peoples in this country who live in those realities, and I can only imagine the complexity of a Kinder Morgan. I hope that all sides can be resolved, but the Inuit have a very specific way of working with the natural resource sector and complying with free, prior, and informed consent. Maybe that's an example for all Canadians to follow.

[The Chair, Liberal, MaryAnn Mihychuk]

We have to move the questioning to MP Romeo Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair, and welcome to our guests today. Thank you for that thorough and very principled presentation. It was a pretty good overall view of Canada's international obligations, UNDRIP, and so on and so forth.

I want to ask a very simple question. Clause 2(2) of Bill C-262 says that the bill should not be interpreted as delaying the application of the UN declaration in Canadian law. Clause 3 talks about the UN declaration being an international human rights law instrument that already has application in Canadian law.

Do you agree with that?

[Natan Obed]

Yes, I do. I also worry sometimes about non-derogation clauses within federal legislation, since I don't think it is within the power of Canada to go against international law.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

You mentioned in your presentation that international law is already binding on Canada and that the Canadian Constitution should be interpreted according to UNDRIP, rather than the contrary. When I heard Minister Bennett at the UN, that's precisely what she said. She said we fully accept the UN declaration without qualification in accordance with the Constitution. That is contrary to what she said today.

I think that should be strongly reiterated everywhere we go, because even before the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN in 2007, as early as 1999, the human rights committee declared that article 1 of both international human rights covenants applied to indigenous peoples in Canada. That's pretty strong, so I think we can safely assume that international law has application in Canadian law.

You spoke about the improvements this bill requires, and I totally agree with what you mentioned in improvements in committee, and the remedial measures that should be required, one of them being that this bill addresses only the laws that should be consistent with the UN declaration. Do you think that this should be amended to include policies and operational practices, as you suggested?

[William David]

Yes, and to draw an example that's out of the context of Inuit, it even extends into ensuring funding equities, so there are not necessarily disparities between how Inuit are funded and how other Canadians are funded. I would think this is the case and I think you get that out of a remedial mechanism, as well as through a law reform mechanism.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

The bill was drafted purposely to be the minimum legislative framework in this country, and you talked a lot about the other issues that could improve this bill and other improvements.

Does this bill in any way hinder your own processes that you have established with the crown? Should the improvements that you talk about be incorporated in Bill C-262, or in another framework that the Prime Minister has talked about recently, the reconciliation framework? I'm not sure if it's going to take the form of legislation or policy. I haven't been told, but where should these other improvements that you talk about—and I totally agree with them—be incorporated?

[Natan Obed]

We draw on our rights in different ways, and the United Nations declaration is but one of a number of different ways in which we create our rights-based standing within this country, and it is a welcome conversation for Canada to be a leader within the declaration implementation in a global setting.

You can't go to another country and see a road map of successful implementation of this declaration, especially thinking of and wrangling with constitutional and legislative structures. The worry that we have as Inuit is if Bill C-262 is more symbolic than structural, then it allows for the Government of Canada to restructure its obligations to the Inuit into a different stream.

If an action plan is created and compliance with the action plan is developed by the government, there is no obligation for indigenous people to play a role in that, and the definition of success then changes.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

The bill talks about it being developed in co-operation and collaboration with indigenous peoples, so it's not going to be developed by the government but in collaboration with you.

[Natan Obed]

Our Inuit to crown relationship, then, is the place where I hope we will further develop over time with this government and successive governments. It does make us a bit concerned when we are put into processes that historically have not been adequate to address some of the concerns that we have as Inuit, as an indigenous people.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair.

Thank you and welcome back to the committee, Natan. Why don't I start with your sense of Bill C-262?

I know that it's part of a broader framework implementation of UNDRIP. Can you advise us as to what type of involvement you've had in drafting Bill C-262—not you personally but in terms of ITK—and if you were consulted? Second, what other measures do you anticipate or expect to be part of the broader framework?

[Natan Obed]

I want to thank member of Parliament Saganash for his leadership in the development of Bill C-262. Inuit were approached and have been consulted over time by the member of Parliament. We didn't develop this in partnership. There was no formal structure in the way in which the bill was drafted. At the same time, there was no discussion and consultation with this current government when the justice minister decided to endorse Bill C-262 as well.

Over time, we have reserved comment and have been generally supportive of legislation within this country for the implementation of the declaration in Canada, but now is the time when we are asserting ourselves. It started with our position paper in 2017. We continue to try to shepherd through any positive mechanism that helps with the implementation of our rights in this country.

I apologize; what was the second part of your question?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

We can just go into the other components of what you expect the framework to look like. This part is the legislative part. There's the recognition of rights component that was announced by the Prime Minister several weeks ago. What other measures would you require in order for UNDRIP to be successfully implemented?